Question Josh Law

The role of legal professionals within the court system

What is the role of the legal professionals within the court system?

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Answer Internal Staff

In their defence of the American legal profession, Strickland and Read stated ‘[a]t the most pragmatic level, lawyers are society’s professional problem solvers... called upon to make distinctions… expected to restore equilibrium’ (Strickland & Read, 2008: 68). Indeed, this summation can also be considered an apt description of the fundamental function of legal professionals in English Courts, from the solicitor advocates and barristers who seek to present opposing arguments and perspectives, to the judges who interpret the law and adjudicate on caselaw (Cownie et al, 2013). Further, this can be considered true regardless of which Court one is in, whether it be criminal, civil or family as in all Courts.

Legal professionals, i.e. lawyers, ultimately work to facilitate the application and development of law in the judicial system, seeking justice to right any imbalances. The English legal system utilises an adversarial model, thus the advocates seek to argue opposing positions on behalf of the parties involved for the instant case, examining testimony to applying abstract legal doctrines to situations (Jason-Lloyd, 1997). This subsequently allows the judge to act in an impartial capacity to make determination regarding the parties involved in the interests of corrective (Van Ness & Srong, 2013) and retributive justice (Hampton, 1991). In a jury trial the jury becomes the impartial decider as to the truth of the case, whilst the judge is responsible for overseeing proceedings, ensuring they adhere to the principles of procedural justice, and instructing the jury on the appropriate manner of reaching a verdict.

On a broader level, it can also be argued that the legal professionals within the judiciary also play a role in the law’s ongoing development, as ‘hard cases’ inevitably arise in which the rules ‘run out’ and judges have discretion in applying the law (Veitch et al, 2013). The milestone case of Donoghue v Stevenson (1932), in which judicial activism effectively pioneered modern tortious negligence, is a prime example of this.

References

R Strickland and FT Read, The Lawyer Myth: A Defense of the American Legal Profession (2008, Ohio UP) p63.

F Cownie, A Bradney and M Burton, The English Legal System in Context (2013 OUP) Chp 2 & 3.

L Jason-Lloyd, The Framework of the English Legal System (1997, Psychology Press) p73-75.

See generally: DW Van Ness and KH Strong, Restoring Justice: An Introduction to Restorative Justice (2013, Routledge, 5th edn) 23-31 and 65-77.

See generally: J Hampton, ‘Correcting harms versus righting wrongs: the goal of retribution’ (1991) 39 UCLA LR 1659.

S Veitch, E Christodoulidis and L Farmer, Jurisprudence: Themes and Concepts (2013, Routledge) 137-140.

Donoghue v Stevenson [1932] UKHL 100.